It depends on the reason for the lack of points. If the points are awarded according to an objective test (for example, the number of new clients introduced by the manager), it will not be discriminatory. However, if the reason he is not being awarded points is his age, it clearly will be discriminatory.
The Court of Appeal finding in a sex discrimination case is relevant here. The court said that anyone claiming discrimination had to prove:
- that he (or she) was being treated differently; AND
- that the difference could have been due to discrimination.
It is not enough for a claimant to establish that there has been a difference in treatment which might possibly be due to discrimination: there had to be more than that. Only if the claimant can establish a probability of discrimination does the 'burden of proof' shift to the employer, to prove that the difference is due to something else.
So the manager in this case would have to prove, not merely that there had been a difference in treatment, but also that it was probably due to discrimination. If he can do that, however, you will then have to prove that it was not down to discrimination, and if you cannot do that you as the employer will be held responsible unless you can show that you have taken such steps as are reasonably practicable to prevent your employees' discriminatory behaviour.
